Lathika Babu and Others v. Syam S. and Others

_M.A.C.A.No.1312/2014_ _1_ # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _THURSDAY, THE 18TH DAY OF MARCH 2021 / 27TH PHALGUNA, 1942_ ## _MACA.No.1312 OF 2014(C)_ _AGAINST THE AWARD IN OPMV 399/2011 DATED 06-01-2014 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA_ ## _APPELLANT/S:_ _1 LATHIKA BABU, W/O.BABU, NIRAPPEL HOUSE, MANJAKUZHI BHAGOM, ELIKKULAM KARA, ELIKKULAM VILLAGE, PONKUNNAM._ _2 ASWATHI, D/O.BABU, REPRESENTED BY HER MOTHER AND NEXT FRIEND, LATHIKA BABU, W/O.BABU, NIRAPPEL HOUSE, MANJAKUZHI BHAGOM, ELIKKULAM KARA, ELIKKULAM VILLAGE, PONKUNNAM. 3 THANKAMMA, W/O.KARUNAKARAN, NIRAPPEL HOUSE, MANJAKUZHI BHAGOM, ELIKKULAM KARA, ELIKKULAM VILLAGE, PONKUNNAM._ _BY ADVS. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.MANU TOM_ ## _RESPONDENT/S:_ _1 SYAM.S., S/O.SISUPALAN, CHIRATHARAYIL HOUSE, KARUVATTA, ALAPPUZHA DISTRICT- 690 517._ - _2 RAJU VARGHESE, S/O.VARGHESE, MALOLA HOUSE, VATTUKULAM P.O., KADAPPOOR, KOTTAYAM DISTRICT-686 596._ _3 THE MANAGER, NATIONAL INSURANCE COMPANY LIMITED, CHERUPUSHPAM BUILDINGS, PALA,_ _M.A.C.A.No.1312/2014_ _2_ _KOTTAYAM DISTRICT, PIN: 686 575._ _R3 BY ADV. SRI.S.K.AJAY KUMAR_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 18.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ _M.A.C.A.No.1312/2014_ _3_ ## **JUDGMENT** ## **Dated this the 18[th] day of March, 2021** This is an appeal filed by the petitioners in O.P. (MV).No.399/2011 of the Motor Accidents Claims Tribunal, Pala. The claim petition was filed by them seeking compensation for the death of one Babu, due to the injuries sustained in a motor accident occurred on 14.04.2011. The 1[st] appellant is the wife of the deceased, the 2[nd] appellant is the daughter and the 3[rd] appellant is the mother of the deceased. According to the appellants, the deceased was working as a rubber tapper and was earning an amount of Rs.16,000/- per month. He was aged 35 at the time of accident. As compensation, they claimed an amount of Rs.21,48,000/-, which was limited to Rs.15,00,000/-. 2. The Insurance Company appeared and filed a written statement admitting the coverage of policy for the vehicle involved in the accident. However, the liability was disputed on various grounds. Quantum of compensation claimed by the appellants was also disputed by the Insurance Company. 3. The evidence in this case consists of Exts.A1 to A8 and oral evidence of PWs 1 and 2. No evidence was adduced from the side of the respondents. _M.A.C.A.No.1312/2014_ _4_ 4. After the trial, the Tribunal awarded a total compensation of Rs.10,65,000/- and since it was found that the accident occurred due to the negligence of the driver of the vehicle involved, being the insurer, the 3[rd] respondent was directed to deposit the said amount along with interest at the rate of 7.5% per annum. Being dissatisfied with the said compensation, this appeal is filed. 5. Heard the learned counsel for the appellants and also the learned counsel for the 3[rd] respondent. The learned counsel for the appellant contended that the monthly income taken by the Tribunal is just Rs.5,000/- as against the claim of Rs.16,000/-, which is on lower side. It was pointed out by him that, in support of the claim of monthly income, they had produced Ext.A8 Employment Certificate, which is marked through PW2, the employer. Therefore, he contended that the same has to be accepted and the monthly income has to be fixed as Rs.16,000/-. 6. On going through the award, at paragraph Nos.11 and 12, it can be seen that the Tribunal has not relied upon the evidence of PW2, mainly on the reason that he was not in the habit of keeping proper accounts. In that circumstances, the monthly income was fixed as Rs.5,000/-. After examining the _M.A.C.A.No.1312/2014_ _5_ entire materials available on record, this Court is of the opinion that the observation made by the Tribunal is correct to some extent. However, Ext.A8 coupled with the oral evidence of PW2 certainly indicate that he was indeed engaged in rubber tapping. Therefore, even though specific materials are not available on record as to the income of the deceased, the said question can be decided by treating him as a rubber tapper. In this regard, it is to be noted that, going by the principles laid down by the Hon’ble Supreme Court in **Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735]** and **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236]** , even in respect of a person with unknown income, monthly income can be fixed by treating the monthly income as Rs.4,500/- for the year 2004 and adding Rs.500/- for each subsequent years. Going by the said principles, the monthly income for the year 2011 will be Rs.8,000/-. However, in this case, there is some evidence to show that, he was engaged as a rubber tapper and hence there is no harm in taking the income slightly at higher rate than fixed by the Hon’ble Supreme Court in the above cases. In the above circumstances, this Court is of the view that Rs.10,000/- per month will be reasonable. Accordingly, the compensation for loss of dependency has to be re-worked by fixing the monthly _M.A.C.A.No.1312/2014_ _6_ income of the deceased as Rs.10,000/-. The learned counsel for the appellants further contended that the multiplier taken by the Tribunal was 15, whereas the age of the deceased is only 35. According to him, the proper multiplier should have been 16. However, on perusal of the records, it is seen that there are no materials showing the actual date of birth of the deceased. He is relying upon the documents such as Ext.A1 FIR, Ext.A2 Postmortem certificate and Ext.A7 inquest report and also oral evidence of PW1, who is his wife. However, it is seen that in all the said documents the age shown is 35. In the absence of any evidence to show the actual date of birth, it is not possible to ascertain whether he has completed the age of 35 as on the date of accident. Therefore, this Court is of the opinion that the multiplier adopted by the Tribunal is correct and 15 can be taken as proper multiplier for computing compensation. In the light of the principles laid down in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680]** , 40% of the monthly income has to be taken towards future prospects. Thus the compensation for loss of dependency has to be worked out by fixing the income as Rs.14,000/-. Thus total compensation under the head of loss dependency is determined as Rs.16,80,000/- [14000 x 12 x 15 x 2/3]. _M.A.C.A.No.1312/2014_ _7_ The Tribunal has awarded an amount of Rs.9,00,000/- under this head and this has to be deducted from the said amount. Accordingly, the additional compensation payable to the appellants under the head of loss of dependency is fixed as Rs.7,80,000/-. While going through the other heads, it can be seen that, no amount is seen granted towards pain and sufferings. Even though, the deceased succumbed to the injuries, some hours after the accident, a nominal amount can be granted under the head of pain and suffering. In the facts and circumstances of the case, this Court feel that an amount of Rs.10,000/- would be a reasonable amount under the said head. It is seen that an amount of Rs.25,000/- have been granted by the Tribunal towards funeral expenses. Going by the principles laid down by the Hon’ble Supreme Court in **National Insurance Company Ltd. v. Pranay Sethi [(2017) 16 SCC 680],** the said amount is in excess by Rs.10,000/-. But it is seen that the amount awarded by the Tribunal under the head loss of estate is Rs.5,000/-, which is lesser by Rs.10,000/-. Therefore, no interference is warranted while taking the compensation under both the above heads together. It is seen that an amount of _M.A.C.A.No.1312/2014_ _8_ Rs.1,00,000/- have been granted under the head of loss of consortium and a further sum of Rs.25,000/- under the head loss of love and affection. Going by the principles in **National Insurance Company v. Somwati [(2020) 9** **SCC 644],** the total amount receivable under the head of loss of consortium including filial consortium as well as parental consortium for the appellants shall be Rs.1,20,000/-. When compensation is awarded under the head of loss of consortium, it is not necessary for granting compensation for loss of love and affection under a separate head. In the above circumstances, the amount awarded under the head of loss of love and affection has to be adjusted against the compensation receivable by the appellants under the head of loss of consortium. Even while adjusting the said amounts as above, an amount of Rs 5,000/- excess. However, in the peculiar facts and circumstances of the case , this court of the view that no interference is to be made and hence the amount of Rs 1,25,000/- awarded under the head of loss of love and affection is not interfered with. In the above circumstances, the total amount receivable by the _M.A.C.A.No.1312/2014_ _9_ appellants is fixed as Rs.7,90,000/- ( 7,80,000 + 10,000). At this juncture, learned counsel for the appellant submitted that the rate of interest is only 7.5%, which is on lower side. Considering the facts and circumstances of the case, this Court is of the view that the same can be fixed as 8% for the additional compensation. In the above circumstances, the 3[rd] respondent is directed to deposit the said amount of Rs.7,90,000/- along with interest at the rate of 8% per annum, from the date of petition till realization. The said deposit shall be made within a period of three months. Appeal is disposed of as above. _Sd/-_ **ZIYAD RAHMAN A.A.** **JUDGE** _DG_